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January 13, 2012

Timing of SEC Fiduciary Rule in Flux

As SEC Chairman Schapiro says RiskFin economists will ask public for more data on retail financial advice, officials question how long this will take.

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The economists and staff at the Securities and Exchange Commission who are responsible for performing a more detailed cost-benefit analysis on the agency’s rule to put brokers under a fiduciary mandate plan to ask the public to weigh in.

SEC Chairman Mary Schapiro (left) told Rep. Scott Garrett, R-N.J., chairman of the House Financial Services Capital Markets Subcommittee, in a Jan. 10 letter that SEC staff along with three economists in the agency’s Division of Risk, Strategy and Financial Innovation (RiskFin), “are drafting a public request for information to obtain data specific to the provision of retail financial advice and the regulatory alternatives.”

In this request, Schapiro wrote, “it is our hope commenters will provide information that will allow Commission staff to continue to analyze the various components of the market for retail financial advice.”

While some have speculated that Schapiro’s letter signals a further delay in the agency unveiling a fiduciary rule proposal–which Schapiro has said will be released sometime this year–Knut Rostad, president of The Institute for the Fiduciary Standard, opines that Schapiro’s “letter, alone, is inconclusive” regarding a further delay. “It can and will be read by both advocates and opponents [of a fiduciary duty for brokers] as a win,” he says.

Rostad says that if the public comment period “is brief, the request sharply focused on ‘relevant data or empirical analysis’, as opposed to research that is neither independent nor credible and verifiable, it could be very valuable to strengthening the basis for proceeding with a robust fiduciary standard for brokers.”

David Tittsworth, executive director of the Investment Adviser Association in Washington, agrees that the SEC’s reach for public input is “a good faith effort to gather as much data as possible relative to the proposed rule.” While the precise timing of the SEC releasing a fiduciary rule this year remains unclear, Tittsworth adds in an email to AdvisorOne, that the SEC’s “public request

for information has not been submitted and the [SEC] will need to give interested parties time to respond” then the agency “will need to assess any information submitted to analyze it.”

The SEC must be “very mindful of potential legal challenges that may result,” from a fiduciary rule for brokers, “including providing a robust cost-benefit analysis that would pass judicial scrutiny," Tittsworth adds. "If the Commission proposes a rule, it will be subject to the Administrative Procedures Act process that allows all interested parties to comment.”

Barbara Roper, director of investor protection at the Consumer Federation of America, said in an email to AdvisorOne that while the request for public input likely signals a further delay for the rule, she saw a "positive sign" in Schapiro's comments that "the economic analysis results would be included in the rule proposal, as opposed to being issued as a separate document before the rule proposal is issued."

Roper went on to say that while "it’s hard to see how this gets done before the presidential election, it’s not impossible, but it seems highly unlikely." That being said, Roper says the Commission "was right to issue the request for data. We’ve said from the outset that we want a final rule, not just a proposed rule – in other words, they need to be able to show that they’ve followed a procedure that can withstand legal challenge."

Garrett along with his GOP colleagues has been pressuring the SEC to perform a more rigorous cost-benefit analysis on its rules.

Schapiro told Garrett in her letter that in moving forward with “possible regulatory action” regarding fiduciary, “the Commission will follow its usual practice of including economic analysis for review and public comment as part of any proposal.” This process has important benefits, she said, “as the comment period that follows a proposed rule provides a mechanism for refining our economic analysis by seeking feedback on specific issues and making requests for private data. This is especially important where, as here, data necessary to conduct an analysis may not be publicly available.”

The comment process, Schapiro continued, “also provides us with additional insights from affected parties that may not have been known or considered during the proposal’s development. By analyzing and, where appropriate, incorporating this input into its analysis, the Commission is able to determine whether to proceed to a final rule and, if a formal rule is warranted, to produce the best possible product.”